SOPA Undermines the U.S. in Its Negotiations for a Free, Open Internet

Yesterday, the Organization for Economic Cooperation and Development (OECD) approved a Recommendation on Principles for Internet Policy Making [pdf]. It contains a set of 14 principles intended as a blueprint guiding Internet policy development for its 34 member states. Many of these principles uphold core values we have long championed: fostering an open Internet, evidence-based policy-making, multi-stakeholder policy development, decentralized online decision-making, effective global privacy protections, and limiting Internet intermediary liability.

But all is not well on the Internet. In spite of this OECD policy framework, efforts at online censorship and spying abound. Members of the U.S. government itself are attempting to push through legislation measures that would subvert many of the core principles found in this document. The Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) enable online censorship on a massive scale and threaten to break the Internet, all in the name of intellectual property enforcement. These bills could encompass any foreign site accessible from the U.S. They give the U.S. government and individuals the ability to leverage Internet intermediaries to ‘blacklist’ sites accused of copyright infringement. Such actions are inconsistent with OECD principles aimed at ‘limiting intermediary liability’. Finally, the DNS blocking contemplated by these bills would undermine the usability of the DNSSEC security measures that are meant to authenticate domains and deter tampering with the DNS system. The reliability and integrity of the DNS is an important part of OECD's aim of promoting Internet security, to which the United States is supposed to be committed.

Another OECD Principle aimed at promoting an open, decentralized and interconnected network is similarly undermined. Karen Kornbluh, U.S. Ambassador to the OECD, just remarked on the importance of decentralization a couple of months ago at a conference organized in the French Senate:

"The Internet is so powerful in part because no centralized authority governs it and no nation owns it … Instead, a decentralized system of public and private actors collaborates to ensure its function and expansion. What this means is that nations that choose to take a heavy-handed approach to regulating the Internet can reduce its value for every other nation and user."

SOPA and its counterpart in the Senate, PROTECT IP, would deliver that reduction in value. And the DNS-blocking those bills require would reduce that value not only by undermining critical infrastructure security efforts, but also by contributing to a globally fractured Internet.

Aside from directly undermining the ‘free and open Internet’ that the OECD Principles attempt to protect, U.S. measures to censor the Internet in the name of intellectual property rights are having a more insidious secondary effect. Countries such as China, with its well-known record of censoring Internet speech, have taken note and point to such double standards as vindication of their own censorship activities. The U.S. is quick to espouse the virtues of protecting Internet freedom in countries such as Iran and Russia, while ignoring the manner in which its own intellectual property agenda leads to similar results. Last week Secretary of State Hillary Clinton asserted in a letter, that “The State Department is strongly committed to advancing both Internet freedom and the protection and enforcement of intellectual property rights on the Internet. Indeed the two priorities are consistent.” In this way, balanced intellectual property rights can be consistent with free expression. However, the U.S. overbroad enforcement agenda is far from balanced and will encourage censorship and surveillance. Moreover, intellectual property rights holders are now pointing to China as a model example of effective intermediary censorship—one the U.S. should emulate.

This U.S. agenda to defend ‘copyright at all costs’ threatens to undermine the Internet Principles adopted by the OECD yesterday. Last summer, U.S. initiated discussions resulted in a ‘Communiqué’--the precursor to this current set of principles--which EFF, and CSISAC, the voice of civil society at the OECD, opposed for privileging intellectual property rights over fundamental rights. While yesterday’s Recommendations included the Communiqué as an appendix “for informational purposes”, the OECD should be praised for ultimately excluding the troublesome elements of the Communiqué from the final legal Recommendation. The version adopted includes 14 high level Principles, but omits the more problematic text from the Communique which purported to interpret some of those principles.

OECD principles, such as the OECD Seoul Declaration and the Guidelines on Transborder Data Flows, will have legal influence on the ultimate interpretation of these new Internet Principles. EFF will continue to battle SOPA, PIPA, and other draconian domestic measures, and together with EDRI, CIPPIC, EPIC and civil society groups across the world we will keep fighting against international measures censoring Internet content. This includes our sustained pressure on the U.S. government to stop laundering policies in international venues, and to instead adopt truly pragmatic policies for a free and open Internet. In this way, EFF is committed to continue engaging in the OECD policy development process.

Related Updates

The US government has responded (PDF) to EFF's motion to unseal the mysterious government order that resulted in the seizure of two servers hosting more than 20 Independent Media Center (IMC) websites. The reply, which argues that the order should remain secret, contains details that suggest that the order...

Public Interest Groups Help Protect Anonymity of Accused Infringers Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After...

Motion Demands Information About the Seizure of Indymedia's Servers Texas - Electronic Frontier Foundation (EFF) attorneys have filed a motion to unseal a secret US federal court order that led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of...

San Francisco, CA - Rackspace Managed Hosting, the San Antonio-based company that manages two Indymedia servers seized by the US government last Thursday, said yesterday that the servers have been returned and are now available to go back online. Immediate access to the servers, which host Indymedia's Internet radio station...

Voting Machine Company Liable for Damages, Costs in Landmark Ruling San Jose - In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. This...

Law "Blacked Out" More than a Million Legitimate Websites The Federal District Court in Philadelphia ruled today that a state law requiring Internet Service Providers (ISPs) to block access to websites that allegedly host child pornography violates the First Amendment. In order to comply with the law, ISPs had...

When NYC Independent Media Center's ISP, Calyx Internet Access, was served with a grand jury subpoena last week, their lawyers' job was made considerably easier by Indymedia's no-logging policy. Calyx got the subpoena in connection with a Justice Department investigation into the posting of an RNC delegate...

EFF has just announced that the JibJab suit has been settled. The resolution was a complete victory for JibJab, which will be entitled to continue distributing the "This Land" animation without further interference from Ludlow. Two things made this outcome possible. First, JibJab's fantastic animation is a clear...